145 F.

3d 1347
98 CJ C.A.R. 2308, 98 CJ C.A.R. 3625
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.

UNITED STATES of America, Plaintiff--Appellee,

v.
Pedro VASQUEZ-CARRIZOZA, Defendant--Appellant.
No. 97-2291.

United States Court of Appeals, Tenth Circuit.

May 11, 1998.

Before BALDOCK, EBEL, and MURPHY, Circuit Judges.

ORDER AND JUDGMENT*
EBEL, Circuit Judge.

Petitioner appeals the district court's denial of his motion under 28 U.S.C.
2255 to vacate, set aside, or correct the sentence he received for illegally
reentering the United States in violation of 8 U.S.C. 1326 (1996). We reverse
the district court's denial of petitioner's motion and remand for further
proceedings.1

DISCUSSION
2

Petitioner-Appellant Pedro Vasquez-Carrizoza ("Vasquez-Carrizoza") pled

guilty to one count of illegally reentering the United States in violation of 8
U.S.C. 1326(a)(1), (a)(2), & (b)(2). The plea agreement provided, "The
defendant and the United States agree ... that the appropriate sentence shall not
exceed 48 months imprisonment." Vasquez-Carrizoza was sentenced on
December 12, 1996 under Federal Rule of Criminal Procedure 11(e)(1)(C) to

forty-eight months imprisonment and three years supervised release. However,

the single count indictment only charged him with violating 8 U.S.C. 1326(a)
(1), (a)(2), & (b)(1), not (b)(2). Further complicating matters, the district court
entered a judgment of conviction against Vasquez-Carrizoza only for violating
8 U.S.C. 1326(a)(1) & (a)(2), not (b)(1) or (b)(2). The discrepancies between
the plea agreement, indictment, and judgment are important because VasquezCarrizoza alleges that he received ineffective assistance of counsel as a result of
his attorney's failure to object to the sentence imposed.
3

The 48-month sentence imposed on Vasquez-Carrizoza reflected an overall

offense level of 17 under the United States Sentencing Guidelines (the
"Guidelines"). Under 2L1.2(b)(2) of the Guidelines,2 the sentencing court
increased Vasquez-Carrizoza's offense level to 24 from a base level of 8
because Vasquez-Carrizoza had reentered the country after being deported
following an aggravated felony--Vasquez-Carrizoza had pled guilty to
possession with intent to distribute marijuana in New Mexico state court on
November 23, 1994. The sentencing court then reduced the offense level to 17
after making a 3-level downward adjustment for acceptance of responsibility
and a 4-level downward adjustment for agreement to deportation. Although
Vasquez-Carrizoza was sentenced to 48 months imprisonment, the maximum
penalty for violating 8 U.S.C. 1326(a)(1) and (a)(2), the offense for which
judgment was entered against Vasquez-Carrizoza, is two years imprisonment.
Vasquez-Carrizoza did not file a direct appeal of his criminal conviction or
sentence.

On August 4, 1997, Vasquez-Carrizoza filed a motion to vacate, set aside, or

correct his sentence under 28 U.S.C. 2255 in the United States District Court
for the District of New Mexico. Vasquez-Carrizoza argued that the district
court improperly sentenced him under 2L1.2(b)(2). In addition, VasquezCarrizoza noted that his prison sentence of 48 months exceeds the statutory
maximum sentence of two years imprisonment allowed under 8 U.S.C.
1326(a)(1) & (2). Vasquez-Carrizoza claimed that his defense counsel should
have contested the sentence and that his attorney's failure to raise the sentencing
issue in the criminal proceedings before the district court or to appeal the
conviction and sentence constituted ineffective assistance of counsel.3 The
district court denied Vasquez-Carrizoza's 2255 motion on August 20, 1997,
and denied a certificate of appealability on September 16, 1997, after VasquezCarrizoza filed a timely notice of appeal. Because Vasquez-Carrizoza filed his
2255 motion after April 24, 1996, the Antiterrorism and Effective Death
Penalty Act of 1996 applies and we must issue a certificate of appealability in
order to consider this appeal. See 28 U.S.C.A. 2253(c)(2) (West Supp.1997);
see also Lindh v. Murphy, --- U.S. ----, ----, 117 S.Ct. 2059, 2068, 138 L.Ed.2d

481 (1997). In an Order dated February 10, 1998, we issued a certificate of

appealability to determine whether Vasquez-Carrizoza received ineffective
assistance of counsel because his counsel did not object either at sentencing or
on appeal to the sentence imposed, because the sentence exceeded the
maximum sentence statutorily allowable for the offense described in the
judgment of conviction, and because the offense to which he pled guilty was
not the same as the indictment or the judgment of conviction, recognizing that
the sentence imposed matched the sentence agreed to by Vasquez-Carrizoza's
guilty plea. We now address the issues raised in the February 10th Order.4
5

8 U.S.C. 1326(a) makes illegal the reentry of aliens who do not obtain the
prior consent of the Attorney General and who have been arrested and deported
or excluded and deported or who have departed the United States while an
order of exclusion or deportation is outstanding. The maximum term of
imprisonment for violating 1326(a) is two years. In contrast, 8 U.S.C.
1326(b) increases the punishment for the reentry of aliens:

6 whose deportation was subsequent to a conviction for commission of three or

(1)
more misdemeanors involving drugs, crimes against the person, or both, or a felony
(other than an aggravated felony), such alien shall be fined under Title 18,
imprisoned not more than 10 years, or both;
7 whose deportation was subsequent to a conviction of an aggravated felony, such
(2)
alien shall be fined under such Title, imprisoned not more than 20 years, or both.
8

Because the maximum sentence under 1326(a) is two years imprisonment,

Vasquez-Carrizoza contends that the district court erred by sentencing him to a
term of imprisonment longer than two years under 2L1.2(b)(2), which covers
aggravated felonies and thus is applicable to 1326(b)(2), but not to
1326(a).5

Vasquez-Carrizoza received the exact sentence he bargained for in entering into

the plea agreement. The parties apparently contemplated a conviction under
1326(b)(2). Nevertheless, we cannot be sure that the district court did not
intend to convict Vasquez-Carrizoza only of violating 8 U.S.C. 1326(a)(1) &
(2), in which case the 48-month sentence would have been improper. On the
other hand, the sentencing court may have made a simple clerical error by
entering a judgment of conviction only for 1326(a)(1) & (2), instead of
1326(a)(1), (a)(2), & (b)(2). In the latter case, the sentencing court could
correct the judgment under Federal Rule of Criminal Procedure 36 to reflect the
plea agreement.6 Therefore, we REVERSE the district court's ruling denying
Vasquez-Carrizoza's 2255 motion and REMAND for further proceedings not

inconsistent with this opinion.

10

The mandate shall issue forthwith.

After examining appellant's brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R.App. P. 34(f) and 10th Cir. R. 34.1.9.
The case is therefore ordered submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3

We hereby grant the United States' Motion For Leave to File Late Response
Brief

Section 2L1.2 of the Guidelines, entitled "Unlawfully Entering or Remaining in

the United States," provides for a base offense level of 8. Subsection (b)(2) of
2L1.2 provided, "If the defendant previously was deported after a conviction
for an aggravated felony, increase by 16 levels." Application Note 7 to 2L1.2
provided in relevant part:
"Aggravated felony," as used in subsection (b)(2), means ... any illicit
trafficking in any controlled substance (as defined in 21 U.S.C. 802),
including any drug trafficking crime as defined in 18 U.S.C. 924(c).... The
term "aggravated felony" applies to offenses described in the previous sentence
whether in violation of federal or state law.
In 1997, 2L1.2 was amended by deleting subsection (b)(2) and replacing it
with a new subsection (b)(1)(A). See Guidelines, Appendix C, Amendment 563
(1998). The new provision still requires a 16-level increase for an alien who
illegally enters the United States following his conviction and deportation for
an aggravated felony. Application Note 7 to 2L1.2 also was deleted and two
new application notes dealing with aggravated felonies were added. Application
Note 1 to 2L1.2 now provides, "Aggravated felony is defined at 8 U.S.C.
1101(a)(43) without regard to the date of conviction of the aggravated felony."
Application Note 5 to 2L1.2 now provides:
Aggravated felonies that trigger the adjustment from subsection (b)(1)(A) vary
widely. If subsection (b)(1)(A) applies, and (A) the defendant has previously
been convicted of only one felony offense; (B) such offense was not a crime of
violence or firearms offense; and (C) the term of imprisonment imposed for

such offense did not exceed one year, a downward departure may be warranted
based on the seriousness of the aggravated felony.
8 U.S.C. 1101(a)(43) provides in relevant part:
The term "aggravated felony" means-****
(B) illicit trafficking in a controlled substance (as defined in section 802 of Title
21), including a drug trafficking crime (as defined in section 924(c) of Title 18)
****
The term applies to an offense described in this paragraph whether in violation
of Federal or State law.
3

Because Vasquez-Carrizoza's claim that he received an improper sentence was

not raised on appeal, he is procedurally barred from bringing the claim in a
2255 motion unless "he can show cause excusing his procedural default and
actual prejudice resulting from the errors of which he complains, or can show
that a fundamental miscarriage of justice will occur if his claim is not
addressed." United States v. Cook, 997 F.2d 1312, 1320 (10th Cir.1993).
However, Vasquez-Carrizoza also claims that his failure to raise the sentencing
issue on direct appeal resulted from ineffective assistance of counsel. Because
ineffective assistance of counsel may constitute cause, we may consider the
sentencing issues raised by Vasquez-Carrizoza in the context of his ineffective
assistance of counsel claim

Vasquez-Carrizoza's 2255 motion also contended that his prior state court
conviction for drug trafficking did not qualify as an aggravated felony under 8
U.S.C. 1326(b)(2) because it resulted in a sentence of less than five years
imprisonment and that his attorney's failure to advise him of that fact before
entering his guilty plea resulted in ineffective assistance of counsel. We did not
issue a certificate of appealability on this issue in our February 10th Order. We
find Vasquez-Carrizoza's arguments on this point to be without merit,
regardless of whether we apply the old or the new 2L1.2 of the Guidelines
(see discussion, supra, note 2), and deny a certificate of appealability on this
issue. See United States v. Andrino-Carillo, 63 F.3d 922, 924-25 (9th
Cir.1995), cert. denied, 516 U.S. 1064, 116 S.Ct. 746, 133 L.Ed.2d 694 (1996)
("aggravated felony" under 1326(b)(2) includes felony drug trafficking
offenses that do not result in a term of imprisonment of at least five years)

We also note that the indictment only alleged a violation of 8 U.S.C. 1326(a)

(1), (a)(2), & (b)(1). However, the Supreme Court recently held in AlmendarezTorres v. United States, --- U.S. ----, 118 S.Ct. 1219, 223-33, --- L.Ed.2d---(1998), that (b)(1) and (b)(2) only constitute penalty enhancement provisions
and do not constitute additional offenses. Thus, the government is not required
to charge the fact of an earlier conviction in the indictment, and the
government's failure to allege a violation of (b)(2) in the indictment does not
require a reversal of Vasquez-Carrizoza's conviction even though he pled guilty
to violating (b)(2). See id
6

Rule 36 provides, "Clerical mistakes in judgments, orders or other parts of the

record and errors in the record arising from oversight or omission may be
corrected by the court at any time and after such notice, if any, as the court
orders."